Appeal No. 1996-0442
Application No. 07/855,442
We have carefully considered all of the arguments
advanced by appellant and the examiner and agree with
appellants that the aforementioned rejection is not well
founded. Accordingly, we will not sustain the rejection.
Assuming arguendo that it would have been prima facie
obvious for one of ordinary skill in the art to prepare
appellants’ claimed subject matter, it is necessary for us to
consider appellants’ rebuttal evidence. Appellants urge that
they have presented experimental data wherein it has been
demonstrated that the claimed composite dielectric layer has
unexpected benefits and hence is unobvious over the disclosure
of Yamada and the closest composite dielectric layers
disclosed by Yamada. See Brief, page 14. We agree. We find
the evidence submitted by appellant in both the Declaration of
Akira Aoyama executed December 10, 1993 and Figure 5 of the
specification to be dispositive of the issues before us.
In contrast, the Answer has focused on Yamada’s
dielectric material which may have a refractive index as low
as 2.15. It is the examiner’s position that the dielectric
material and its refractive index effectively anticipate
appellants’ claimed dielectric material. Hence appellants
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